Docket: IMM-4780-16
Citation:
2017 FC 480
Ottawa, Ontario, May 9, 2017
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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MAN LI YIU
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
Visitors to Canada, such as Ms Yiu, are not
permitted to work without authorisation. The Immigration Appeal Division (IAD)
of the Immigration and Refugee Board of Canada determined that she had so worked
and issued an exclusion order against her. This is the judicial review of that
decision.
[2]
Most, but not all, of the facts are not in
dispute. What is essentially in dispute are the inferences drawn by the IAD
from the established facts.
[3]
In 2015, after taking into account internet
advertisements, the Ottawa Police raided a bawdy house. Ms Yiu was found in a
closed bedroom. A shirtless man was putting on his trousers. A used condom was
on the floor. What is in dispute is Ms Yiu’s state of dress or undress.
According to the police report, she was scantily clad on top, and wore nothing
below. She maintains she was fully and properly dressed.
[4]
There were other women in the house who were without
question granting sexual favours for financial consideration.
[5]
The police brought Ms Yiu’s situation to the
attention of the immigration authorities.
[6]
Ms Yiu was here on a visitor’s visa in order to
visit her Canadian boyfriend (whom she subsequently married). Section 30(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) provides
that a foreign national may not work or study in Canada unless authorised under
the Act. Ms Yiu was not so authorised.
[7]
“Work” is defined in the Immigration and Refugee Protection Regulations,
as meaning “an activity for which wages are paid or
commission is earned, or that is in direct competition with the activities of
Canadian citizens or permanent residents in the Canadian labour market”.
The competition aspect is not in issue.
[8]
An officer prepared an inadmissibility report
pursuant to section 44 of IRPA on the basis that she had failed to
comply with the Act.
Ms Yiu’s Story
[9]
Ms Yiu strenuously denies that she was “working” in the house in question or that she was
inappropriately dressed. She had lent her iPad to an acquaintance and had
simply made arrangements to go to the house in question to retrieve it. She had
no idea that the lady was a sex trade worker and that the house in question was
a bawdy house. She had gone upstairs to use the washroom when one of the women
in the house called out that the police had arrived. She rushed into the
bedroom where, she understood, the iPad was kept in a closet. She did not want
it seized. The bedroom door closed automatically. Her eyesight being terrible, she
had no idea that there was a man in a state of undress in the room.
The Proceedings
[10]
She succeeded in having the exclusion order set
aside by the Immigration Division (ID) of the Immigration and Refugee
Protection Board. She was found to be credible and was believed. The Minister
had not met the burden of proving that she had been working.
[11]
The Minister appealed, and succeeded.
Essentially, the IAD preferred the police report over Ms Yiu’s testimony and
inferred, in the circumstances, that she had been working.
[12]
The IAD relied upon the oft-cited passage from
the Reasons for Judgment of Mr. Justice O’Halloran of the British Columbia
Court of Appeal in Faryna v Chorney, [1952] 2 DLR 354, where he said at
p 357:
The credibility of interested witness,
particularly in cases of conflict of evidence, cannot be gauged solely by the
test of whether the personal demeanour of the particular witness carried
conviction of the truth. The test must reasonably subject his story to an
examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions.
Issue
[13]
The issue is not whether Ms Yiu was working. The
issue is whether it was unreasonable for the IAD to decide that she was. This Court
is not the trier of fact.
Decision
[14]
Despite what I must say were truly herculean
efforts on the part of Ms Yiu’s counsel, I am of the opinion that the decision
was reasonable and so the application for judicial review must be dismissed.
Analysis
[15]
Prime among the many issues raised by Ms Yiu
were:
(a) the IAD owed deference to the finding of the ID that she was not
working;
(b) that it was wrong to rely upon the police report, over her own
evidence, as the police in question had not filed affidavits and could not be
cross-examined;
(c) a higher standard of proof was required because of the immoral undertones
involved;
(d) the IAD reversed the burden of proof;
(e) the member made manifest, palpable and overriding errors in his
findings of fact;
(f) crucial evidence was not considered; and
(g) conclusions were not reasonably drawn from inferences, but rather
were the result of outright speculation.
[16]
The appeal to the IAD is an appeal de novo.
It is not an appeal limited to the record before the ID. Each side may call
evidence, including evidence that was not before the ID. The IAD owes no
deference to the ID in these circumstances. The authorities were fully reviewed
by the Chief Justice in Castellon Viera v Canada (Citizenship and
Immigration), 2012 FC 1086.
[17]
The IAD was entitled to rely upon the police
report and to prefer it over Ms Yiu’s own evidence. She had attempted,
unsuccessfully, to have the police testify before the ID and does not appear to
have pursued that matter before the IAD.
[18]
The IAD is the master of its own procedure, so long
as the principles of natural justice including procedural fairness are
respected. Section 175(1)(b) of IRPA provides the IAD is not bound by
any legal or technical rules of evidence.
[19]
Madam Justice Snider considered the reliability
of an unsworn report in Canada (Minister of Citizenship and Immigration) v
Furman, 2006 FC 993, at para 99. Indicia include whether the document was
prepared by persons with no interest in the proceedings and not in
contemplation of litigation, or were prepared contemporaneously.
[20]
It was submitted that a higher burden of proof
was required because of the nature of the work alleged: had she been alleged to
be working as a cleaning lady, the burden would have been lower. Counsel
referred to the decision of the Nova Scotia Supreme Court in Reid v Halifax
Insurance Co, [1984] Carswell NS 372. That was an action for damages
under a fire insurance policy. The underwriters were defending on the basis of
misrepresentation and arson. It was held “where the
allegation in a civil case is on conduct that is morally blameworthy, or that
could have a criminal or penal aspect to it, the degree of proof that is
required is a higher degree of probability than when there is not a morally
blameworthy, criminal or penal aspect to it”.
[21]
However, that case can no longer be relied upon
in the light of the decision of the Supreme Court in FH v McDougall,
2008 SCC 53, [2008] 3 S.C.R. 41. The Court made it perfectly clear that in civil
matters, absent legislation to the contrary, the burden is always on the
balance of probability. That case dealt with allegations of sexual assault in
the civil context.
[22]
I do not agree that the IAD reversed the burden
of proof. The overall burden was always on the Minister, but the evidentiary
burden may shift depending upon what is put in the record and when.
[23]
In my opinion, the IAD made no reviewable error
in its findings of fact. The presumption that all the evidence was considered
was not rebutted. This is not a case such as Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425, where
evidence not referred to in the reasons contradicted the decision-maker’s
findings. The fact that Ms Yiu’s photo did not appear on the website does not
lead to the conclusion that she was not working. The fact that other women in
the house had luggage while she did not, does not indicate that she was not
working there. Indeed, the evidence is that she was living with her boyfriend
and had no need of luggage. Likewise, her boyfriend’s evidence as to what she
was wearing earlier in the day and the fact that, after she was released from
detention, they retrieved the iPad, has no bearing on what she was or was not
doing in the house.
[24]
The issue is whether the IAD’s conclusions were
inferences properly drawn from the facts as opposed to outright speculation.
[25]
In Grant v Australian Knitting Mills Ltd &
Ors, [1936] AC 85, [1935] All ER Rep 209 (JCPC), Lord Wright stated at pp
213-14:
Mathematical, or strict logical,
demonstration is generally impossible: juries are in practice told that they
must act on such reasonable balance of probabilities as would suffice to
determine a reasonable man to take a decision in the grave affairs of life.
Pieces of evidence, each by itself insufficient, may together constitute a
significant whole, and justify by their combined effect a conclusion […].
[26]
The common law has long recognized the
difference between reasonable inference and pure speculation. As Lord Macmillan
said in Jones v Great Western Railway Co (1930), 47 TLR 39, at p 45, 144
LT 194 p 202:
The dividing line between conjecture and
inference is often a very difficult one to draw. A conjecture may be plausible
but it is of no legal value, for its essence is that it is a mere guess. An
inference in the legal sense, on the other hand, is a deduction from the
evidence, and if it is a reasonable deduction it may have the validity of legal
proof. The attribution of an occurrence to a cause is, I take it, always a
matter of inference.
[27]
Jones was applied
by the Federal of Appeal in Canada (Minister of Employment and Immigration)
v Satiacum (1989), 90 NR 171, [1989] FCJ No 505.
[28]
Even if the police had it wrong in stating how
she was dressed, there was still ample evidence to support the inference drawn
that she was working (Miranda v Canada (Minister of Employment and
Immigration), [1993] FCJ No 437, 63 FTR 81).
[29]
When all is said and done, I am being asked to re-weigh
the evidence, which is not the function of this Court on judicial review (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR
339; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 15, [2011] 3 S.C.R. 708).
[30]
The decision was reasonable in the light of Dunsmuir
v New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. As noted therein, at para
47, there may be a number of possible, reasonable conclusions. The decision
fell within the range of possible, acceptable outcomes. It was not unreasonable
for the IAD to conclude that Ms Yiu was working in the room in question,
without authorisation, even though the ID reached a different conclusion.
Certified Question
[31]
There is no appeal to the Federal Court of
Appeal from my decision unless, in accordance with section 74(d) of IRPA,
I certify that a serious question of general importance is involved and state
the question.
[32]
Ms Yiu proposes that the following question be
certified:
What is the standard of review for the
finding of whether someone meets the elements of a contravention of law, or
whether the Minister has discharged their burden of proof in the context of s
30(1) of the Immigration and Refugee Protection Act, SC 2001, c 27?
[33]
As stated by the Court of Appeal, the issue is
whether there is a serious question of general importance which would be
dispositive of the appeal (Zazai v Canada (Minister of Citizenship and
Immigration), 2004 FCA 89), and which must transcend the interest of the
immediate parties to the litigation (Mudrak v Canada (Minister of
Citizenship and Immigration), 2016 FCA 178).
[34]
The law is well settled as to the burden of
proof and circumstantial evidence. Accordingly, there is no question for
certification.
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